COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Agee and Senior Judge Coleman
LARRY HARLEN SERGENT
MEMORANDUM OPINION*
v. Record No. 1455-01-3 PER CURIAM
NOVEMBER 6, 2001
FREEDOM FORD LINCOLN MERCURY, INC. AND
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(D. Allison Mullins; Lee & Phipps, P.C., on
brief), for appellant.
(William F. Karn; Butler, Williams, Pantele &
Skilling, P.C., on brief), for appellees.
Larry Harlen Sergent (claimant) contends the Workers'
Compensation Commission erred in finding that (1) Freedom Ford
Lincoln Mercury and its insurer (hereinafter referred to as
"employer") proved that he was released to return to his
pre-injury work as of March 20, 2000 and that any continuing
disability was not causally related to his compensable November
11, 1999 injury by accident; and (2) he failed to prove that his
partial disability from May 26, 2000 through June 11, 2000 and
temporary total disability after June 11, 2000 were causally
related to his compensable November 11, 1999 injury by accident.
Upon reviewing the record and the briefs of the parties, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
In granting employer's application and denying claimant's
application, the commission found as follows:
The Deputy Commissioner found that the
claimant's disability after March 20, 2000,
was unrelated to the November 11, 1999,
accident. We agree. The claimant's
treating physician, Dr. [D. Kevin]
Blackwell, opined that the claimant's
symptoms and disability after March 20,
2000, were related to his degenerative
disease process, not his injury of November
1999. This opinion was uncontradicted.
Dr. [Neal A.] Jewell opined in February 2000
that the claimant's pain was related to his
injury. Dr. Blackwell agreed with this
assessment and adequately explained, based
on his clinical findings and diagnostic
testing, that by March 20, 2000, the
claimant's pain, symptoms, and disability
were related to his unrelated degenerative
disease. Dr. Jewell did not treat claimant
after February 2000. The Deputy
Commissioner correctly relied on the opinion
of Dr. Blackwell, the treating physician.
I.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
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(1986)). Factual findings made by the commission will be upheld
on appeal if supported by credible evidence. See James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989).
Dr. Blackwell's opinions constitute credible evidence to
support the commission's findings that claimant was released to
return to his pre-injury work as of March 20, 2000 and that his
disability thereafter was not causally related to his
compensable November 11, 1999 injury by accident. 1 As fact
finder, the commission was entitled to weigh the medical
evidence and to give more probative weight to Dr. Blackwell's
opinions than to the opinions of Dr. Jewell, who did not treat
claimant after February 2000. "Medical evidence is not
necessarily conclusive, but is subject to the commission's
consideration and weighing." Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Moreover, "[i]n determining whether credible evidence exists,
the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
1
We note that Dr. Galen Smith who examined claimant on July
17, 2000 did not disagree with Dr. Blackwell's findings or
conclusions. Dr. Smith stated that he would defer to
Dr. Blackwell for further treatment recommendations and work
restrictions if such were necessary.
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the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
II.
Unless we can say as a matter of law that claimant's
evidence sustained his burden of proving that his partial
disability from May 26, 2000 through June 11, 2000 and total
disability thereafter were causally related to his compensable
November 11, 1999 injury by accident, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In light of Dr. Blackwell's uncontradicted opinion, we
cannot find as a matter of law that claimant proved he was
partially disabled between May 26, 2000 and June 11, 2000 and
temporarily totally disabled after June 11, 2000 as a result of
his compensable November 11, 1999 injury by accident.
For these reasons, we affirm the commission's decision.
Affirmed.
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